HomeMy WebLinkAbout2005-06-09city council minutesBOOK 46
SPECIAL MEETING
JUNE 9, 2005
12:00 P.M.
PAGE 80
The Special Meeting was called to order by Mayor Nancolas. The Mayor asked that everyone rise for the Pledge of
Allegiance to the Flag.
The Roll of the City Council was called with the following members present: Hopper, Dakan, Wells, Blacker, and
Oates. Absent: Ozuna.
SPECIAL BUSINESS
(HEARING THE MOTION TO DISMISS FILED BY CANYON COUNTY COMMISSIONERS
REGARDING SPEICAL USE PERMIT APPEAL FILED BY GINA LUJACK IN CASE NO. SUP- 237 -05)
Mark Hilty, City Attorney, 621 Cleveland Blvd., explained the procedure for the meeting. He stated that the appeal
has been filed and is currently scheduled for hearing on July 5 This is an interim step where the County who is the
applicant for the conditional use permit has filed a motion to dismiss the appeal asserting that the appellant, Gina
Lujack, does not have standing to bring the appeal. In this proceeding the procedure that is logically indicated by the
City's ordinances and by the case law he has reviewed, the interested parties would Gina Lujack and the County. It is
not a general public hearing. The issue also does not have anything to do with the merits of the conditional use permit
itself. This is to determine whether Gina Lujack fits within the category of persons that can bring an appeal.
Hilty continued that of Council finds that Lujack does have standing then it will proceed to hearing on July 5"' for a
consideration of the merits of the case. If Council finds that she does not have standing, the appeal needs to be
dismissed. The law does state that the appeal can not be heard or pursued if Lujack does not have standing.
Hilty advised the Council that City Code section 10 -03 -04(7) indicates that an appeal may be filed by a person having
an interest in real property within a 300 -foot radius of the exterior boundaries of the subject property. The initial
question would be does Gina Lujack own property within 300 feet of the site where the work release center is
proposed. The Supreme Court has held that there is a Constitutional dimension to standing. You cannot simply draw
a line in the ground at a certain distance and say someone outside the area does not have standing. We are looking for
real or potential harm to the property interests of Gina Lujack that might result from the approval of the work release
center. The court says that distance is an important factor but it is not the only factor.
Hilty stated that the County has provided a legal brief on the issue that goes on to clarify that that real or potential
harm must amount to a distinct and palpable injury. Hilty suggested hearing from the County first since they are the
ones who filed the motion. Then Gina Lujack may respond followed by a short rebuttal period.
Councilman Hopper asked for clarification on the term of "having an interest" in the property. Hilty stated that that is ,
not well defined in the cases but typically it could include a tenant or renter of property or if you own it jointly with
someone else. Hilty added that you would need to consider the degree of the interest to apply the standard of whether
or not there is harm.
Councilman Hopper stated that Council hears appeals on a regular basis from people who represent someone who may
have property in that zone but who do not have a direct owning interest. He asked how that fits into the "interest"
category.
Hilty stated that this analysis that he has described is not a simple one. We don't deal with appeals often. When
someone comes in seeking an appeal it is asking a bit much of our staff. They typically process the appeal and it is an
available option to the applicant to challenge standing. Hilty stated that that is something we probably need to look at
more closely but this is a fairly detailed analysis.
Councilman Wells asked if a private citizen can have interest in a public building. Hilty answered that that is not
possible. When you get to the distinct and palpable injury portion it needs to be to the specific property owner rather
than the public at large.
Hilty stated that the Supreme Court has instructed us that you cannot just draw a line at 300 feet and say that you don't
have standing if you are outside of that area. You need to look deeper than that. He asked Council to consider
specifically where Gina Lujack's property is and what interest she has and what injury she might suffer as a
consequence of the development of the work release center.
Hilty requested an executive session following the hearing to discuss threatened or pending litigation.
Scott Spears, 3996 S. Arunda Way, Boise, spoke on behalf of the County. He stated that the issue before Council is
one of jurisdiction and standing. In order for the Council to have jurisdiction Gina Lujack must have standing. He
stated that the ordinance clearly defines who may appeal and only provides standing to those within 300 feet of the
exterior boundaries. He stated that they are applying standing from the Planning and Zoning Commission to the City
Council.
Spears stated that Lujack had noted the parking requirements for the facility. This Council needs to consider how the
parking issues for the facility might adversely affect Lujack's property. If her property is beyond 300 feet from the
facility, it would be a tough question to say that parking at the work release center would adversely affect Lujack's
property.
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Spears continued that another issue was the traffic impact study. Lujack referenced the proximity of the facility to
Chicago, IO Ave., and Van Buren School. The Council needs to consider whether traffic at those places will
adversely impact Lujack's properties.
Spears noted that her grounds for appeal reference protection of future transportation corridors. He asked how that
would affect her properties located more than 300 feet away.
Spears added that the courts have determined that standing may be denied even if a person shows injury when the
asserted harm is generalized and shared by all or a large class of citizens. He stated that the issues raised in the appeal
do relate to a large group of citizens. He stated that Council must find both that she would be impacted and a
connection and that her interests are different from any other citizen in the community.
Spears referenced a case that applies these concepts. There were residents of a city who were upset that a person had
been provided a permit to cut down trees. The citizens appealed and the court determined that they did not have
standing and stated that the fact that they reside in the city is not sufficient to confer standing.
Spears noted that no other citizens have come forward to appeal this decision. Spears submitted a map showing the
vicinity of the area. The Mayor labeled the map as Item CC- 1000'. He stated that this morning they had discovered a
problem with parcel #0027600000. The problem was that when the Assessor's office platted the wrong the parcel
number. That has been revised on this map. The green on the map is the proposed work release center, the tan area is
property owned by Canyon County and the dark pink is the 300 -foot radius. The peach color is a % mile radius and
the red dots are the locations of the three closest of Lujack's properties.
Spears stated that Gina Lujack does not have standing in this case under the ordinance and under the case law. He
noted that there may be an interest but he doesn't feel that a person renting a house would have an interest in the rental
property.
The Mayor stated that the ultimate authority in a special use permit is the City Council. However, the City Council
has given that authority to the Planning & Zoning Commission in the case of special use permits and variances. He
asked for explanation on how that would effect Mr. Spears' statements.
Hilty stated that he sent a letter to the County and Gina Lujack regarding the Evans vs. Teton County case. This case
is the one where the Supreme Court moved away from the 300 foot rule and put in its place a consideration of the
harm that might be caused to the real property interest. That case dealt with whether someone has standing to seek
judicial review. It was not dealing with what this is. This is an administrative appeal that is still within the city. The
concern is whether the ruling in the Evans vs. Teton County applied only to judicial review or if it also applies in the
context of an administrative appeal. Hilty stated that he doesn't think there is any specific case law on that.
' Hilty stated that his concern is that the Supreme Court has said that standing is a constitutional issue. The City cannot
adopt an ordinance that defines standing in a way that is inconsistent with the constitution. The court was also dealing
with a process that started as a zoning issue like this and then wound up in court. He advised Council that the Evans
case does apply but there is a distinction that that was a judicial review case while this was an administrative appeal.
Because the issues are the same and standing is a constitutional dimension, we need to apply the same standard here as
would be applied by the Supreme Court.
Councilman Oates asked if the judicial review struck down the underlying ordinance that was being challenged. Hilty
stated that there were some differences in case that dealt with other issues. The upshot of the case was that the
appellants did have standing regardless of the 300 -foot rule. He stated that he doesn't know if that was addressed in
the opinion.
Spears stated that the Evans case is interesting because the property owners who were appealing were within 300 feet
of the subject property. They filed an appeal based upon that fact. The developer argued that they didn't have
standing even though they were within 300 feet. He stated that he doesn't believe that the court struck down their
ordinance but they said they would not look to the pre - determined distance.
Councilman Hopper asked how the standard could change between the administrative appeal and the judicial review.
Hilty stated that there is something that doesn't seem right about City Council throwing out a case on a standing issue
using a standard that is different from the one applied to the same case on judicial review. He stated that the logical
thing to do would be to apply the same thing the court would since it is a constitutional dimension,
Gina Lujack, 2418 Ray Ave., addressed Council and stated that when she filed the appeal she asked who is eligible to
file an appeal. She stated that she paid $340.00. Lujack stated that if she needed legal counsel then less than 48 hours
is not sufficient for her to seek legal counsel. She stated that she interprets "interest" as something different than
ownership. She definitely has interest as a citizen.
Lujack stated that she is also interested as a realtor. She stated that she should be able to know what is going on and
be able to warn a person if they are purchasing from her in a particular neighborhood. She noted that she is objecting
to the use of the facility but to its location. She stated that she is upset at the disdain that the County has for the City.
Lujack stated that she is part of the Downtown Revitalization project and knowledgeable developers have advised the
City that the economic future hinges on a well- designed, value- oriented development pattern along highway 20/26
that includes Chicago Street. She stated that some of the properties there are impoverished areas and she doesn't think
we should create things that will further impoverish areas.
Lujack requested that if she is dismissed on this appeal that Council open the appeal term again. She stated that she
feels that the elected officials know that if this goes to appeal it will be shut down.
BOOK 46
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Councilman Dakan asked Lujack if she has rental property in the area. Lujack stated that she has 1518 E. Ash and
2418 Robert but they are not within the ' / d mile distance. Lujack stated that whatever happens in that area impacts
everyone's property values.
Councilman Wells asked if Lujack has a direct harm. Lujack asked how those terms are defined. She stated that she
has an interest in this town and in every property. Councilman Wells asked if she can spell out a specific harm that
will be done to her if this is approved. Lujack stated that she can in that the people coming into town will notice this
out of place building. Councilman Wells asked how that harms her. Lujack stated that it is a trickle down effect and
what the town looks like. She stated that if they had done a bond issue and built a building that blends in with the
other County buildings she wouldn't have an issue with it.
Councilman Hopper asked Lujack if she has represented properties near this location. Lujack stated that she was
dealing with a couple of clients that she could not interest in the area because of this project.
The Mayor asked Mark Hilty about Ms. Lujack's legal representation. Hilty stated that as far as due process goes,
there is a rule that we have to abide by whatever our terms are in our ordinance. There is nothing there that directs the
processing of the appeal other than the 14 day public notice requirement. There is nothing to direct when we hear a
motion to dismiss like this. He stated that he doesn't think there is a violation of any due process rule in our ordinance
by hearing this today.
Hilty stated that that leaves us with the more vague fundamental fairness type of due process concern. That is more
difficult to convey in strict legal terms. Council needs to consider whether there has been a problem with the
fundamental fairness accorded to Ms. Lujack.
Scott Spears offered rebuttal testimony. He reiterated that Ms. Lujack has not claimed an ownership interest in real
property within the 300 -foot radius of the site. She has not asserted that her real property will be adversely affected
by the Center and she has stated concerns that go to the heart of standing.
Spears read an excerpt of the Idaho Supreme Court referencing the U.S. Supreme Court. He stated that Ms. Lujack is
stating her concerns as a citizen and she is not stating harm to her property and that is what standing requires. He
asked Council to move forward with a decision to dismiss this appeal.
Councilman Wells asked Hilty if he agrees with this analysis. Hilty stated that that is what the cases say and when
talking about distinct and palpable injury, that is what it means. There is some specific injury that this person
requesting standing has that is traceable and is not shared by the public at large. He stated that that is an accurate
reading of what he heads in the case law.
Councilman Blacker stated that he has trouble with trapping citizens in a technicality. He stated that he is having
difficulty getting common sense here. He asked for explanation in layman's terms. Hilty stated that this is a ,
challenge because the Supreme Court talks in legalese. He stated that he thinks the concept the Supreme Court has
said is that an individual needs to be able to show how they are going to be harmed by the approval of a development
in order to have standing to object. When we look at how they show harm, Mr. Spears is saying it can't be the general
harm that everyone would show up and say. We are looking for a limited class of persons who can tell you they have
an interest in real property that would be adversely affected by this that is distinct to me and here is why.
Councilman Blacker asked if that can deal with a person's occupation. Hilty stated that he reads the interest in real
property as being a significant part of the standing issue when you are dealing with a zoning matter. He stated that his
understanding of the law is that we need to look at what interest she has in real property, not just her occupation.
MOVED by Dakan, SECONDED by Hopper to close the public testimony portion of this hearing.
Roll call vote. Those voting yes: Dakan, Wells, Blacker, Oates, and Hopper. Those voting no: none. Absent and/or not
voting: Ozuna.
MOTION CARRIED
EVIDENCE LIST:
The Mayor presented the Evidence List: agenda, CC -1000 (map showing the vicinity with a 300 -foot radius and a %
mile radius).
MOVED by Dakan, SECONDED by Hopper to accept the Evidence List as presented.
Roll call vote. Those voting yes: Dakan, Wells, Blacker, Oates, and Hopper. Those voting no: none. Absent and/or
not voting: Ozuna.
MOTION CARRIED
Councilman Hopper stated that there are a number if issue here and he is struggling with where this should go. There
are number of ways to interpret standing and it is not just proximity. He stated that Ms. Lujack provided an example
of a subject property within the zone that has been affected and has been an issue in terms of her livelihood. He stated
that he is not interested in hearing the merits of whether this should go in or not. What he is concerned about fairness.
BLANK TAPE ON SECOND SIDE..
MISSED SOME DISCUSSION.......
Councilman Wells stated that he understands it as that the concern with appearance that Ms. Lujack has is the same
concern as the general public would have and therefore it doesn't qualify to have standing. He stated that although he
may not like that position, it appears to be the logical conclusions
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